Citation Nr: 0604199
Decision Date: 02/14/06 Archive Date: 02/22/06
DOCKET NO. 04-29 599 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
The propriety of the termination of the veteran's special
monthly pension benefits, awarded on housebound criteria.
ATTORNEY FOR THE BOARD
Dennis F. Chiappetta, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
April 1951 to April 1953, from February 1954 to February
1956, and from October 1956 to October 1957. This matter is
before the Board of Veterans' Appeals (Board) on appeal from
an April 2004 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which
determined that entitlement to special monthly pension based
on housebound criteria was no longer shown, and discontinued
such benefits, effective April 30, 2004.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
A claimant may qualify for special monthly pension benefits
by reason of being housebound or at the housebound rate. In
such a case, in addition to having a single permanent
disability rated 100 percent disabling under the Schedule for
Rating Disabilities (not including ratings based upon
unemployability under 38 C.F.R.
§ 4.17), the appellant must demonstrate (1) that he has
additional disability or disabilities independently ratable
at 60 percent or more, separate and distinct from the
permanent disability rated as 100 percent disabling and
involving different anatomical segments or bodily systems, or
(2) that he is permanently housebound by reason of disability
or disabilities. This second requirement is met when the
appellant is substantially confined to his or her dwelling
and the immediate premises or, if institutionalized, to the
ward or clinical area, and it is reasonably certain that the
disability or disabilities and resultant confinement will
continue throughout his or her lifetime. 38 U.S.C.A. §§
1502(c) and 1521(e); 38 C.F.R.
§ 3.351(d).
In an April 1993 decision, the RO determined that the veteran
was permanently and totally disabled for nonservice connected
disability pension and that he was entitled to special
monthly pension under 38 C.F.R. § 3.351(d)(1) at the
housebound rate on account of organic brain syndrome, status
post cerebrovascular accident (CVA), rated 100 percent, and
additional disabilities of hypertension/cardiovascular
disease with pacemaker implant, weakness of the right upper
extremity, dysarthria, emphysema, and neurogenic bladder,
independently ratable at 60 percent or more. The veteran
received these benefits for more than 10 years.
Based on findings reported on a December 2003 VA mental
disorders examination and December 2003 general medical
examination, the RO, in January 2004, proposed to discontinue
entitlement to special monthly pension previously assigned
based on being housebound. The RO indicated that the
examinations showed that the veteran's mental disorder
(organic brain syndrome, status post CVA), was no longer
totally disabling. The RO evaluated the organic brain
syndrome as only 30 percent disabling and explained that with
this reduced evaluation (from 100 to 30 percent), the veteran
no longer met the requirements for special monthly pension.
The veteran was sent a January 2004 letter in which he was
notified that VA proposed to discontinue his entitlement to
special monthly pension based on being housebound. The
January 2004 notification letter did little more than inform
the veteran that he had 60 days to submit medical or other
evidence to show that VA should not make the change in his
benefits. The veteran did not reply, and his special monthly
pension benefits were discontinued by way of the April 2004
RO determination on appeal. In his June 2004 notice of
disagreement, the veteran asserted that he did not understand
the prior letters he received, that he does require
assistance in his daily living, and that he would like to be
scheduled for another examination.
Initially, the Board notes that the December 2003 VA mental
disorders examination relied on by the RO to reduce the
veteran's disability rating for organic brain syndrome from
100 percent to 30 percent was performed without benefit of
review of the claims folder or any other records of medical
treatment. In the examination report, the examiner
specifically stated the following: "There is no C file that
accompanies [the veteran], and thus, nothing for me to
review." The December 2003 VA general medical examination
report, likewise, did not indicate that the examiner had the
opportunity to review any records of the veteran's medical
history in conjunction with this examination. The veteran
should be afforded new examinations that properly consider
his medical history.
The Board points out that the veteran has had a long history
of serious medical problems, including three strokes,
hypertension with pacemaker implant, organic brain syndrome,
glaucoma, peripheral vascular disease, emphysema, and a
neurogenic bladder. Despite such problems, the claims file
contains only scant medical records for the period since
1993. It is likely that extensive medical records exist that
have not been associated with the claims file and were never
reviewed prior to the 2003 examinations. Pertinent
outstanding records should be obtained prior to any
examination.
Additionally, the Board points out that the veteran's
diagnosed medical conditions now include glaucoma and
peripheral vascular disease. The VA examinations conducted
in December 2003 did not really address these conditions, and
there is insufficient information to properly rate these
disabilities. No eye examination appears to have been done,
or, if one was, it is not reported. One of the appellant's
nonservice-connected disorders is hypertension with a
pacemaker implant, evaluated as 30 percent disabling. The
record does not contain any recent medical evidence of a
cardiovascular examination, and there is insufficient
evidence of record to determine the current severity of this
disorder. For these reasons, it is necessary that the
veteran be provided with the proper examinations in order to
determine the nature and severity of all his disabilities.
Moreover, as noted above, the January 2004 notification
letter did little more than inform the veteran that he had 60
days to submit medical or other evidence to show that VA
should not make the change in his benefits. The Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes
obligations on VA in terms of its duties to notify and assist
claimants. The U.S. Court of Appeals for Veterans Claims
(Court) has mandated that VA ensure strict compliance with
the provisions of the VCAA. See, e.g., Quartuccio v.
Principi, 16 Vet. App. 183 (2002). It cannot be said, in
this case, that there has been sufficient compliance when the
RO at no time sent a VCAA letter to the veteran notifying him
of what was needed to substantiate the claim for continued
payment of special monthly pension.
Accordingly, while the Board regrets the delay, this claim is
REMANDED for the following:
1. Provide to the veteran all notification
action required by the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000). Ask the veteran to
identify the names and complete addresses of
any medical providers who have treated him for
any disability since 1993. The notice should
also inform the veteran that he should provide
VA with copies of any evidence relevant to the
claim that he has in his possession. Any
notice given, or action taken thereafter, must
comply with current, controlling legal
guidance.
2. After securing any necessary release(s),
request records of any identified treatment,
and associate all records received with the
claims file. If private treatment is reported
and those records are not obtained, tell the
appellant, and provide him an opportunity to
obtain the records and submit them in keeping
with his responsibility to submit evidence in
support of his claim. 38 C.F.R. § 3.159(c).
3. After receiving as many of the veteran's
treatment records as possible or providing him
an appropriate opportunity to submit the
records, schedule him for complete and
thorough VA housebound examination, to include
such special examinations as may be deemed
necessary by the examiner to obtain sufficient
information to apply the appropriate rating
criteria to all of the veteran's disabling
conditions. Such additional examinations
should include, as needed, mental disorders
examination to determine the severity of the
veteran's organic brain syndrome, status post
CVA; an examination of the lungs for his
emphysema; a vision examination to identify
the impairment attributable to glaucoma; a
cardiovascular examination to address
hypertension with pacemaker implant and
peripheral vascular disease; a neurological
examination to evaluate all disability
(including right-side deficits) residual to
the veteran's CVAs; and a urinary examination
to address problems with the bladder. If any
additional examinations are needed to properly
assess the veteran's disabling conditions,
they should be accomplished. The claims
folder and a copy of this remand must be made
available to and thoroughly reviewed by the
examiners prior to the examinations. The
examiners should conduct all necessary tests
in order to determine the severity of the
appellant's medical conditions.
The mental disorders examiner should
carefully review the veteran's history of
residuals following his three strokes, as
well as records of recent treatment,
before examining the veteran and
assessing the severity of the
occupational and social impairment caused
by these residuals.
The cardiac examiner should discuss the
symptomatology attributable to the
appellant's cardiac condition(s), as well
as the limitation on activities resulting
from his disorder(s). If the veteran has
hypertension, whether medication is
required and whether it is under control
should be indicated. Any coronary artery
disease or hypertensive heart disease
should be evaluated in such a way that
enables application of the rating
criteria for those conditions, with
discussion of workload in terms of METs
and resulting symptomatology, such as
angina, dyspnea, fatigue, dizziness,
syncope, left ventricular dysfunction,
congestive heart failure. Whether
medication is required should be
indicated.
The complete rationale should be given
for all opinions and conclusions
expressed.
4. Thereafter, the RO evaluate all of the
veteran's disabilities under applicable rating
criteria and should readjudicate the veteran's
claim regarding entitlement to special monthly
pension by reason of being housebound. If any
benefit sought on appeal remains denied, the
veteran and his representative (should he
obtain one) should be provided a supplemental
statement of the case (SSOC). An appropriate
period of time should be allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
No action is required of the appellant until further notice.
However, the Board takes this opportunity to advise the
appellant that the conduct of the efforts as directed in this
remand, as well as any other development deemed necessary, is
needed for a comprehensive and correct adjudication of his
claims. His cooperation in VA's efforts to develop his
claim, including reporting for any scheduled VA examination,
is both critical and appreciated. The appellant is also
advised that failure to report for any scheduled examination
may result in the denial of a claim. 38 C.F.R. § 3.655.
This claim must be afforded expeditious treatment.
_________________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).